Mussetter v. Timmerman

De France, C. The plaintiff, Timmerman, who is the appellee in this court, was engaged in the drug business in the city of Denver, and in June, 1882, the defendant, Mussetter, became an equal partner with him in said business. This partnership continued until some time in January, 1883, when the plaintiff sold out his interest therein to a person by the name of Cox. As a part of the purchase price for such interest, Cox agreed in writing with the plaintiff to pay certain debts of the old firm, and a schedule of said debts was attached to and formed a part of said agreement. There seems to have been an understanding between plaintiff and defendant at the time that such schedule was to, and did, include all the debts of said partnership. A mistake was made, however, in this respect, and debts amounting to $285.66 were left out of said schedule. These debts the plaintiff after-wards paid, and then brought this suit to recover one-half the amount thereof. It is alleged that the debts so paid by the plaintiff were contracted by the firm on account of the purchase of certain goods. The defendant denied that such goods had been purchased or received by the firm, and alleged that plaintiff had agreed to pay all debts, if any, not mentioned in said schedule. The plaintiff replied, denying that he had agreed to do so. At the trial, which was to the court, the plaintiff and defendant each testified in his own behalf. In giving in his testimony the plaintiff referred to certain bills of parcels claimed to be duplicates, stating that such bills contained a statement of the goods so purchased and the prices agreed to be paid therefor, and that he had paid for the goods, and at the prices therein named. These bills were offered and admitted in evidence over the defendant’s objections, and the ruling of the court in admitting the same is assigned as error. We think this objection is not well taken. The bills were admissible as part of [203] the plaintiff’s testimony. Whether they were the original bills or duplicates could make no difference, provided they contained a correct list of the goods bought, and a true statement of the prices at which they were purchased. The plaintiff’s testimony tended to show that they did. The principle of estoppel contended for does not arise in this case. Upon the issue made, that the plaintiff was to pay all debts not mentioned in the schedule, the court found against the defendant. The defendant was not a party to the agreement between Cox and the plaintiff. The plaintiff prepared the schedule of debts which Cox assumed to pay. It does not appear that he either wilfully or knowingly left any debts out of such list. Nor does it appear that his assertion to defendant, if he made such, that the schedule included all the debts of the firm, was wilful, or made with intent to deceive the defendant, or to induce him to act thereon. Neither does it appear that defendant was prevented an inspection of such schedule, or that any concealment or deception was-practiced or resorted to in its preparation. 3 Herm. Estop. § 329. It is apparent, then, that the mistake and consequent loss to both the plaintiff and himself are due in part to his own negligence. But the defendant in his testimony says that the new firm of Cox„& Mussetter was to pay all the debts of the old firm. That being true, it is difficult to see how the defendant is injured. On the presumption that he was an equal partner with Cox in the new firm, he would have had one-half of these deb'ts to pay, according to his own testimony, if they had been included in the schedule. The plaintiff, therefore, is the only person who suffers by the mistake, and Cox reaps the benefit. The judgment in this case should be affirmed. / Stallcup and Bising, CO., concur. Per Curiam. For the reasons assigned in the foregoing opinion the judgment of the superior court is affirmed. Affirmed.